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James Hays is a partner in the firm's New York office and a leader of the Traditional Labor Law Team.

When it comes to whether unions have a right to enter an employer’s premises over the employer’s objections, California’s law is the polar opposite of the National Labor Relations Act and the law in most other states.  In California, unions generally have special access rights that nonlabor parties do not have.  Unions are given preferential treatment because of the state’s union-friendly public policies.  However, this may soon change due to the Supreme Court’s recent order granting a hearing in Cedar Point Nursery et. al. v. Hassid where the issue presented is:
Continue Reading SCOTUS to Consider Whether California Unconstitutionally “Takes” Private Property When It Compels Employers to Grant Union Access to Private Property

In an effort to combat the recent rise in COVID-19 cases in New Jersey, on October 28, 2020 Governor Murphy signed Executive Order 192 (the “Order”), mandating health and safety standards to protect New Jersey’s workers during the pandemic.  Effective November 5, 2020, the Order requires every business, non-profit and governmental or educational entity to implement certain protocols to protect employees, customers, and all others who come into physical contact with its operations. Key takeaways are summarized below.
Continue Reading New Jersey Governor Murphy Orders New COVID-19 Workplace Protocols

On September 17, 2020, the U.S. House of Representatives passed HR 2694, the Pregnancy Workers Fairness Act (“PWFA”), in a 329-73 vote.  The Senate will now consider the bill, which, if passed, would require employers to reasonably accommodate pregnant workers and employees with pregnancy-related conditions.  The bill would clarify an employer’s obligations set forth in the 2015 U.S. Supreme Court decision Young v. UPS, 135 S. Ct. 1338 (2015) and subsequent Equal Employment Opportunity Commission (“EEOC”) guidance.
Continue Reading Pregnancy Workers Fairness Act Heads to the Senate

On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.  What emerges is a clear message—while the pandemic can impact certain obligations under the National Labor Relations Act, the agency will not permit employers to use the pandemic as a sword to engage in unlawful conduct.  Under Agency guidelines, advice memos in such “go” cases cannot be released until the case is closed.  Accordingly, rather than release actual advice memos, the GC’s September 18 memo contained a series of anonymous case summaries in which an employer’s actions relating to the virus were deemed unlawful.  Over the past several months, we have reported on advice memos from the NLRB General Counsel’s Division of Advice finding various employer actions in dealing with COVID-19 issues to be permissible under the NLRA (see our recent postings here and here).  The GC’s latest memo includes a list of these earlier advice memos in which an employer’s COVID-19 conduct was found lawful.  What follows is a description of some of the issues and settings rendering these matters meritorious and therefore “go” cases.
Continue Reading GC Finds Merit in COVID-19 Related ULP Cases in GC Memo 20-14

Unions have long sought to avoid the NLRB’s election process, relying instead upon so-called “neutrality” agreements to obtain initial recognition by employers and legally enforceable rights to represent and bargain on behalf of previously unrepresented employees.  Although truly neutral pre-recognition “neutrality agreements,” i.e. those calling for an employer to be neutral on the subject of unionization and little more, are lawful, many such agreements go beyond mere neutrality and venture into actual employer support of organizing.  This may render such agreements unlawful under the National Labor Relations Act (NLRA or Act) because they interfere with employees’ rights under the Act.  Indeed, Section 8(a)(2) of the Act declares it impermissible for an employer to support a union’s organizing efforts.  Likewise, Section 8(b)(1)(A) of the Act makes it unlawful for a union to receive such support.
Continue Reading Neutrality and Labor Peace Agreements – When Its Unlawful for an Employer to Be “Too Neutral” as to Union Organizing Under the NLRA

Did an NLRB’s Regional Director abuse her discretion when she directed a mail ballot election instead of an in-person (manual) ballot election during the COVID-19 pandemic?  Though not getting the attention it deserves, this is an extremely important issue going to the very integrity of the Board’s representation process.  Manual balloting has long been the Board’s preferred manner of conducting an election because mail balloting is held under less controlled conditions and, thus, more prone to irregularities.  Moreover, mail ballot elections may result in lower employee election participation.  Most importantly to employers, mail ballot elections also generally favor unions.
Continue Reading The Board Weighs In on the COVID Mail Ballot Controversy

Yesterday, the NLRB issued a Notice of Proposed Rulemaking (NPRM) calling for public comments as to two important changes to its regulations governing representation elections.
Continue Reading Board Announces Intent to Issue New Rules Eliminating Disclosure of Certain Personal Information and Requiring Absentee Ballots for Those on Military Leave

Yesterday, the NLRB issued a Notice of Proposed Rulemaking (NPRM) calling for public comments as to two important changes to its regulations governing representation elections.
Continue Reading Board Announces Intent to Issue New Rules Eliminating Disclosure of Certain Personal Information and Requiring Absentee Ballots for Those on Military Leave

In light of the COVID-19 pandemic, many employers have been forced to conduct staff layoffs as businesses were closed in compliance with shelter-in-place orders and subsequently rehire employees as lockdown restrictions have been lifted. One concern employers should bear in mind is how the layoffs and later rehiring of employees impact the enforceability of any previously agreed upon restrictive covenant agreements.
Continue Reading 1st Circ. Holds Non-Compete Agreement Unenforceable Against Fired and Rehired Employee

On Tuesday, the National Labor Relations Board (NLRB or Board) issued its much-awaited decision in General Motors, LLC (GM), 369 NLRB No. 127 (2020), in which it held that abusive or inappropriate workplace speech by employees engaged in protected concerted or union activity (PCA) is not protected under the National Labor Relations Act (NLRA or Act) and that employers may discipline workers for engaging in such conduct, provided, the discipline is not shown to be retaliation for protected conduct.
Continue Reading Sticks and Stones…The NLRB Rethinks Its Position on Abusive Workplace Speech by Employees While They Are Engaged in Protected Concerted and Union Activities

Most employers wrestling with COVID-19 related employment law issues aren’t paying much attention to the labor law issues arising out of the pandemic.  Indeed, because most U.S. employers are non-union, many operate under the mistaken belief that they fall outside the reach of the National Labor Relations Act (Act or NLRA) and don’t have to concern themselves with labor law compliance.  However, the NLRA protects almost all private sector employees regardless of whether they are union-represented or not.  Accordingly, except for those employing agricultural employees or workers covered by the Railway Labor Act, both unionized and union-free employers are subject to the NLRA and must conform their personnel policies, practices and decision-making to the Act.
Continue Reading NLRA “Advice” All Employers Should Consider in a COVID World